Tenants Rights and Responsibilites
© State of New South Wales through the Office of Fair Trading
BEFORE YOU MOVE IN
Before choosing a particular property to rent, it is important to take a number of things into consideration:
- Is the house/flat close to public transport, friends, shops, work, school?
- Is it noisy - is it on a flight path or near a busy road? Can you put up with the noise?
- What's the parking like?
- Is there good security - are there locks on the windows and doors?
- Does the place need repairs - if so will the landlord carry out any necessary repairs before you move in? Do you have this in writing?
- What is the weekly rent? How often do you have to pay? You normally have to pay two weeks in advance, but if your rent is over $300 per week you may have to pay a month in advance.
- How is the rent paid? Does the landlord collect? Do you pay at the agent's office?
Once you've made your decision and your application to rent the property has been accepted, the law says that landlords or their agents (usually a Real Estate Agent) must offer a tenant a written tenancy agreement (or lease) before the tenant moves in or the tenancy starts. The lease sets out the rights and obligations of all parties and a tenant should always insist on being given a copy of the lease once all parties have signed it.
The tenancy agreement must be provided by the landlord. Agreements can be purchased from most newsagencies and stationery stores. They are not available from the Office of Fair Trading.
In the event that a tenant is occupying a property without a written lease (in which case the landlord or agent has broken the law), the law protects the tenant in the same manner as if a written lease did exist.
© State of New South Wales through the Office of Fair Trading
DOCUMENTS YOU MUST BE GIVEN
Before a tenant enters into a tenancy agreement (lease) or moves in to a residential property they must be given the following documents by the landlord or the landlord's agent:
- a copy of the proposed tenancy agreement (filled out by the landlord or agent where appropriate in the spaces provided) which comes in two parts:
- the terms of the agreement
- a report on the condition of the property (called the condition report)
- a written statement of the costs payable by the tenant on signing the agreement
- a copy of the Renting guide.
The tenant must be given time to read and understand the terms of the tenancy agreement before being asked to sign it.
© State of New South Wales through the Office of Fair Trading
- a copy of the proposed tenancy agreement (filled out by the landlord or agent where appropriate in the spaces provided) which comes in two parts:
SIGNING A NEW LEASE
Before signing the lease that commits you to renting a residential property, you need to make sure you understand what it contains and what you will be agreeing to by signing it.
Period of the agreement
The agreement should define a period of time called the 'fixed-term'. Generally, tenancy agreements have a fixed term of either 6 or 12 months but the parties can agree to have a tenancy agreement for any length of time.
When the fixed-term period ends the tenancy agreement does not end unless it is terminated by the tenant or the landlord. If it is not terminated, the agreement becomes a continuing agreement with the same terms and conditions.
Terms
The terms of the agreement set out what the landlord and tenant agree to do during the tenancy.
Standard terms (terms 1 to 28) apply to all landlords and tenants and cannot be altered or deleted. There need not be any additional terms added to a tenancy agreement. Additional terms may however, be added so long as they:
- expand on one of the standard terms of the agreement, or
- cover a matter under the Act which is not already dealt with in the agreement.
All additional terms, including any which may be printed on the agreement (not handwritten), are negotiable. The parties can agree to alter the wording or delete an additional term altogether.
It is against the law to add a term which conflicts with either the Act or one of the standard terms of the agreement. Any such terms are not binding or enforceable, even though the tenant may sign the agreement. Examples of additional terms which are not binding or enforceable include:
- the tenant agrees to have the carpet professionally cleaned when they vacate, or
- the tenant agrees to replace tap washers, stove elements or to be responsible for any other repairs to the premises.
Condition report
The tenant and the landlord report on the condition of property at the start of the tenancy in the condition report, which is the second part of the tenancy agreeement.
The landlord/agent generally completes the condition report first and then gives two copies to the tenant to record their assessment of the property. The tenant has 7 days to fill in both copies and return one to the landlord/agent. The tenant keeps the other copy.
Landlord/agent responsibilities
The landlord/agent should note the cleanliness, general condition and working order of each applicable item on the report. Any comments should be written in the space provided, or on a separate page if there is no room. If the property is furnished a list of all the furniture and the condition of each item should be attached to the report.
Tenant responsibilities
It is important that tenants take the time to inspect the property thoroughly and record on the report the condition of the property as they see it.
The tenant should fill out the 'tenant agrees' column with a Y (for yes) or an N (for no). If the tenant does not agree they should write a reason in the comments area of the report.
Common conditions that can easily be missed are cracked windows, grease on the stove, marks on the walls or stains on the carpets. All of these conditions should be noted on the report.
The tenant should sign and return one copy to the landlord or agent within 7 days and keep the other copy for themselves.
If a condition report is not provided, the tenant should write a detailed report on the condition of the property and get a witness to sign and date it and send a copy to their landlord/agent.
The tenant should keep their copy of the condition report in a safe place – it will be needed at the end of the tenancy when a final inspection is done. If the landlord/agent disputes the return of the bond at the end of the tenancy, a carefully completed condition report may help a tenant prove that the bond should be refunded to them.
Promised repairs
If the landlord or agent promises, prior to the start of the tenancy, to fix anything or do other work (eg. cleaning or painting) this should be noted in the space provided at the end of the condition report. The tenant will then have written evidence on which to take the matter further if the repairs or other work are not carried out by the agreed date.
© State of New South Wales through the Office of Fair Trading
UP FRONT COSTS
Reservation fee
A reservation (deposit) fee is an amount of money (no more than one week's rent) that is sometimes paid to reserve the premises while an application for tenancy is being considered. A reservation fee is a sign of good faith, but does not guarantee that the tenancy will go ahead.
If the landlord or agent decides not to go ahead with the tenancy on the agreed terms, or makes no decision within one week of the fee being paid, the full amount must be refunded. Should the tenancy go ahead the reservation fee is applied to the first week's rent.
If the applicant withdraws, the landlord may retain rent for the days the premises were reserved. This is provided the premises were not let or occupied during the period of reservation, no more than one reservation fee was being held at the same time and a proper receipt and written acknowledgment were given to the prospective tenant when the fee was paid.
Agreement costs
The landlord can ask the tenant to pay half the cost of preparation of the tenancy agreement, but only up to a maximum of $15 (GST inclusive).
This means that if an agent or solicitor charges more than $30 to prepare an agreement the landlord must pay the balance over $15.
Advance rent
A tenant must pay the rent in advance from the first day of the tenancy. The tenant can be required to pay:
- two weeks rent in advance, if the weekly rent is $300 or less, or
- one month rent in advance, if the weekly rent is more than $300.
It is important to remember that a tenant cannot be required to pay the rent other than on a weekly or fortnightly basis if the weekly rent is $300 or less.
Advance rent is not money that the landlord can keep in reserve as some form of extra rental bond. A tenant cannot be asked to make any more rent payments until the rent which they last paid has been used. For example; on the day the tenancy commences the tenant may pay two weeks rent and be 14 days in advance. As each day passes the tenant becomes oneday less in advance, so that when the rent next falls due (a fortnight later) the tenant is no longer in advance with the rent. By making their next fortnightly payment the tenant is again 14 days in advance and the cycle continues.
BONDS
A rental bond is an amount of money paid by a tenant as a form of security for the landlord in case the tenant does not follow the terms of the agreement.
Amount of bond
Charging a rental bond is not mandatory, however the maximum rental bond that can be asked for is:
- four weeks rent, for unfurnished premises
- six weeks rent, for fully furnished premises with a rent of $250 or less per week
- unlimited, if the rent for fully furnished premises is more than $250 per week.
The amount of bond that is to be paid (if any) must be written on the agreement.
Demanding or receiving a written guarantee from a tenant, or somebody on their behalf, is not permitted. A rental bond must be in the form of money and not as a guarantee.
Lodging a rental bond
The landlord or agent must send any bond paid to the Office of Fair Trading, within 7 days. A lodgement form is needed to do this and can be obtained from any Fair Trading Centre or by calling 13 32 20. Lodgement forms cannot be downloaded from this website as they have a unique barcode.
Bonds can be lodged by posting the Lodgement Form along with a cheque/money order for the bond amount to Renting Services, Locked Bag 19 Darlinghurst, 1300. Bonds can also be lodged in person at any Fair Trading Centre during office hours, 8:30am - 5:00pm Monday to Friday.
After the bond is lodged, all parties should receive an advice of lodgement that includes the unique rental bond number. If the advice is not received, the tenant should contact Fair Trading to confirm that the bond had been lodged. It is an offence for a landlord/agent to request a rental bond from their tenant and then not lodge it with Fair Trading.
During the tenancy, the bond is held by the Rental Bond Board and accumulates interest. The Rental Bond Board is the independent custodian of rental bonds paid by tenants to landlords for residential tenancies. The Office of Fair Trading administers the day to day functions of the Board, providing rental bond lodgement, custody, refund and information services.
Claiming the bond back
At the end of the tenancy, after the final inspection, a Claim for Refund of Bond Money form must be submitted to Fair Trading before the bond money can be refunded. You should not sign the form if it is blank or incomplete. The landlord or agent may want to claim some or all of the bond for themselves if they believe you have damaged the premises, breached your agreement or owe rent.
Any disagreement over how the bond is to be refunded should first be discussed between the parties. If agreement cannot be reached, either party may send a Claim for refund of bond money form to the Office of Fair Trading without the signature of the other party. The bond will not be paid out straight away. A letter will be sent to the other party advising them of the claim and giving them 14 days to apply to the Consumer, Trader and Tenancy Tribunal to dispute the claim. If no reply is received within 14 days the bond will then be paid out. Tell Fair Trading your new address so we can advise you if the landlord claims your bond.
No matter who applies to the Tribunal, it is always up to the landlord to prove any claim on the bond.
If you have any questions about rental bonds, or the progress of your bond refund, call Fair Trading on 13 32 20.
Case study: Rental bond - read about Joanne and her struggle to get her bond back...
© State of New South Wales through the Office of Fair Trading
FORMS
Download
Four forms relating to rental bonds are available to download in PDF format. If you have a problem opening PDFs, right click on the link with your mouse and choose ‘Save Target As’ and save the PDF on your local drive. Then open it directly from Windows Explorer (or equivalent).
Note that Bond Lodgement forms cannot be downloaded from this website as they have a unique barcode.
Claim for Refund of Bond Money (size: 102k)
Transfer of Bond (size: 134k)
Change of Shared Tenancy Arrangement (size: 73k)
Change of Managing Agent/Owner (size: 74k)Order online
Multiple copies of all rental bond forms (including lodgement forms) can be ordered free of charge online, along with Fair Trading publications, through www.shop.nsw.gov.au, the NSW Government's online shop.
Collect in person
All rental bond forms can be obtained free of charge from:
- any Fair Trading Centre
- most real estate agents.
© State of New South Wales through the Office of Fair Trading
RENTING COSTS
When you sign a new lease and move in to your new rented home, you will have a number of one-off and on-going expenses.
Your one-off expenses could include:
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setting up an account with an electricity provider
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if the property has gas connected, setting up an account with a gas provider
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setting up an account with a telephone/internet service provider:
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if the property does not have a phone/internet connection you must get permission from the landlord before making arrangements for connections to be made.
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Your on-going expenses will include paying rent, paying other bills such as for electricity and may involve paying water/sewerage charges.
Related information:
- Department of Energy, Utilities and Sustainability
contact details for electricity and gas providers in NSW - Telinfo
contact details for telecommunications providers
© State of New South Wales through the Office of Fair Trading
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RENT
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Rent is the main cost to tenants and is paid on a regular basis. The level of rent and the method of rent payment should be agreed upon before the tenancy begins. Both should be written into the tenancy agreement in the spaces provided. Rent payments are GST free. The method of rent payment cannot be changed during the agreement period unless the tenant agrees.
Rent receipts
Receipts must always be given if the rent is paid in person.
Receipts for rent must show:- the address of the premises
- the name of the tenant
- the name of the landlord or agent
- the amount of rent paid
- the date the rent was paid
- the period of time which the rent covers.
If rent is posted, a receipt must still be filled out and either sent back to the tenant, or kept until the tenant wants to collect it. If the rent is paid into a bank account, no rent receipt need be given.
The landlord or agent must keep copies of all rent receipts and a separate rent record for at least 12 months. It is advisable that receipts be kept by both parties until after the end of the tenancy.
Electronic rent payments
A landlord cannot pass on the cost of providing a payment card or deposit book to the tenant for paying rent at a post office or bank.
Use of collection agents to collect rent
A collection agent is a person or organisation who collects rent on behalf of an agent who is managing the property for the owner.
If a tenant agrees to pay their rent through a collection agent, they then enter into a contract with the collection agent. The collection agent may charge a fee for this service, and if there are direct debits from a tenant's bank account for rent payment, then bank fees may be charged. Tenants must also be aware that the collection agent and the bank can charge additional fees if there are insufficient funds in the bank account at the time the collection agent attempts to debit their account. Before agreeing to use the services of a collection agent, tenants must ensure they read and understand the terms of the contract.
How can rent be increased?
Rent may be increased after the fixed term period of the agreement has expired. Before a landlord (other than the Department of Housing) can increase the rent the tenant must be given at least 60 days notice in writing. The notice must show the amount of the increased rent and the day from which the increased rent is to be paid. This also applies where an existing agreement is to be renewed.
If the notice is sent by post at least four working days should be added to the amount of notice, to allow time for the notice to be delivered.
For rent to increase during a fixed term tenancy the agreement must have an additional term showing the amount of the increase or the method of calculating it. A 60 days rent increase notice must still be given.
Challenging rent increases
If a tenant thinks that a proposed rent increase is too high they can:
1. Negotiate
Even though the landlord or agent has given notice they may still agree to reduce the amount of the increase or withdraw it altogether. They may be persuaded by evidence of market rents in your area or what you have done to the premises. You should carefully explain the reasons why you believe the increase is too high in a letter to the landlord.If the condition of the premises is the reason you think the increase is too high you should raise this with the agent or landlord. For instance, they may be prepared to paint the premises in exchange for the rent increasing. It is up to the landlord to consider the costs involved in any such proposal.
If the landlord agrees on a lower amount of increase this should be put in writing. Another 60 days notice is not necessary. The lower increase becomes due from the same date the original increase was payable.
2. Apply to the Consumer, Trader and Tenancy Tribunal
Tenants can apply to the Tribunal to have a proposed increase reduced or withdrawn, if they believe that the increase is too high. Department of Housing tenants receiving a rent rebate cannot do this.Applications must be made within 30 days of receiving the rent increase notice. Tenants have to prove that the increase is excessive. The main evidence the Tribunal considers is comparable rents for similar properties in the same area.
Before you apply to the Tribunal you may wish to visit estate agents in your area and gather evidence of the current market rent for properties similar to your own. It is often worthwhile to view the available premises to make sure they are similar (eg size, location, view etc).
© State of New South Wales through the Office of Fair Trading
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WATER AND SEWERAGE CHARGES
Service charges
Landlords are responsible for paying all service charges for water and sewerage issued by the local water supply authority. Under no circumstances can connection fees be passed on to the tenant.
Water usage
In some cases a tenant may be asked to pay to the landlord the water usage part of the bill. The ‘water usage’ charge which appears on the landlord's bill for the rented premises is for the total amount of water which flows through the water meter on the property.
A tenant may only be charged for water usage when they have agreed to pay for water usage under the additional terms of the tenancy agreement. If there is no additional term about ‘water usage’ (usually under clause 29 of the standard form of residential tenancy agreement), a tenant cannot be asked to pay any amount.
A tenant can only be charged for the metered amount of water which they use. For this reason it is important that the water meter be read and the figure noted on the premises condition report before the start of each tenancy. Otherwise there will be no way of dividing the first account between the tenant and the former occupant.
If there is no individual meter for the rented premises, as is the case with most blocks of units, a tenant cannot be charged for water usage. If the supply authority has a minimum amount payable for all properties the tenant does not have to pay for water.
A tenant is entitled to a photocopy of the water account and should pay any amount owing before the due date on the bill.
Sewerage charges
Some water authorities also charge a fee for sewerage discharge or waste water. This fee is usually based on the amount of water supplied to the premises (eg. 75% of water consumption) and may be charged to the tenant.
© State of New South Wales through the Office of Fair Trading
TENANT DATABASES
Information for renters
Many real estate agents are not willing to rent a residential property to anyone who is listed on a tenant database. To protect tenants from unfair treatment in relation to the use of tenant databases, real estate agents and property managers must follow rules introduced by the Property Stock and Business Agents Amendment (Tenant Databases) Regulation 2004.
What is a tenant database?
Tenant databases provide agents with information about the previous tenancies of prospective tenants where there may have been problems. This information helps agents assess if an applicant is likely to be a financial risk to the landlord.
When did the Regulation start?
The Regulation applies to any listing made on or after 15 September 2004. The Regulation does not apply to listings made prior to 15 September 2004.
What do the rules mean?
Under the rules an agent is only permitted to list a tenant on a database for specific reasons. It is also the agent’s responsibility to use a database that is operated in accordance with the rules.
If you are listed on a tenancy database on or after 15 September 2004, it should be for something more serious than a minor breach of the residential tenancy agreement. For example, it may be the result of owing money to a landlord for unpaid rent or damage to the rental premises.
What are my rights as a tenant?
Before signing a lease
At the time of signing the residential tenancy agreement (lease) your agent must inform you (verbally or in writing) that if you breach the agreement your personal information could be listed on a tenant database.
It is recommended that you keep a copy of any written correspondence between you and the agent in case of a dispute.
Under what conditions can I be listed?
You can only be listed once the residential tenancy agreement has been terminated.
The agent must advise you in writing of their intention to list you and the reason for doing so. You must be given a reasonable opportunity to respond, including time to review and correct the information about you the agent intends to list. Be sure to keep a copy of this correspondence.
An agent cannot list you for a minor breach of a tenancy agreement. You can only be listed for specific reasons as follows:
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for owing the landlord money for rent and/or damage caused intentionally or recklessly to the residential premises (but only if the amount owing exceeds the amount of the rental bond)
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failure to pay an amount of money to the landlord in accordance with an order of the Consumer Trader and Tenancy Tribunal (CTTT)
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where the CTTT has issued a termination and possession order for serious or persistent breach of the residential tenancy agreement
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where the CTTT has issued a termination and possession order for serious damage or injury.
If you disagree with the agent about any details of the listing, the agent must note your objection on the database.
If the agent cannot locate you after making reasonable inquiries, you can still be listed.
Exception
If you have made an application to the CTTT for an order in relation to the tenancy, the agent cannot list you for ‘owing the landlord money for damage’ unless the CTTT has determined your application.
How long can a listing last?
It varies, depending on why you are listed and whether a debt is involved. See the rules below. Remember that these rules only apply to listings made on or after 15 September 2004.
For non-payment of a debt
If you owe the landlord money, and the debt is paid within 3 months, within 7 days of becoming aware that the payment has been made, the agent must notify the database operator who must delete all reference to that debt from the database within 7 days of being notified.
If you owe the landlord money, and the debt is paid after 3 months, within 7 days of becoming aware that the payment has been made, the agent must notify the database operator who must record the payment on the database within 7 days of being notified. The database operator must delete all reference to that debt after 3 years.
For other allowable reasons
If you are listed for an allowable reason other than non-payment of a debt, the database operator must delete any reference to that listing after 3 years.
How to avoid problems
To avoid problems:
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pay your rent on time
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do not intentionally or recklessly damage the residential premises
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never fail to pay money to your landlord by the due date if the CTTT has ordered it
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comply with the terms of your lease
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understand your rights and responsibilities as a tenant by reading the Renting guide
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keep copies of all correspondence in a safe place, including letters from agents and proof of payments.
What about unfair listings?
If you think you have been listed on a database unfairly after 15 September 2004, you have the right to challenge the listing. You should take the following steps:
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make your objection known to the agent (you should do this in writing and keep a copy of your correspondence in case of a dispute)
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if the information listed is inaccurate, out of date or incomplete, contact the agent and request that the information be amended
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if the agent objects to your requested change/s, your objection must be noted on the database
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contact the Office of Fair Trading on 13 32 20.
How do I know if I’m listed?
If you are listed on a database after 15 September 2004:
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the agent is required to give you written notice of their intention to list you and reasons for doing so, and
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the agent is required to use a database which provides you with cost-free access to any listed information about yourself.
If you were listed prior to 15 September 2004, you may not have been notified of that listing. If you are experiencing difficulties in applying for a rental property ask the agent if you are listed on a tenant database.
Fines apply to agents and property managers who fail to observe the tenant database rules of conduct.
© State of New South Wales through the Office of Fair Trading
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SHARING A RENTED HOME
If you are thinking of sharing a home with friends or strangers, there are many things to consider.
To make sure you make a decision about share housing that is right for you, start off by making a list of all the things you are looking for - house or flat, number of people, amount of rent, close to work/university/other, close to bus/train, friends/family, furnished or unfurnished etc.
Check out the 'to let' and 'share accommodation' sections in newspapers, on websites and community noticeboards. If you are a student, your college or university may have an accommodation officer who can help you with information.
How does your wish list stack up? Is what you are looking for likely to be available?
Moving in
If you decide to go ahead with sharing a property, you need to be aware of the four different arrangements that can apply which will have an impact on your rights and responsibilities. It is important to seek advice if you are unclear which category you fall into.
Tenant
In some sharing situations, you may still be a tenant. For instance, if you rent a "granny flat" off the owner who lives in the main house. In these situations, you would have the same rights and responsibilities as any other tenant.
Head-tenant/sub-tenant
This occurs when a tenant of a property rents out part of the premises (eg. a room) exclusively to another person. The tenant should get the landlord's consent before sub-letting. Under this arrangement, the tenant becomes a head-tenant and takes on the landlord role with the person who has rented the room (ie. the sub-tenant).
Co-tenants
When more than one person signs a lease they are co-tenants. Co-tenants each have a legal with the owner of the property and share full responsibility for the tenancy. A co-tenancy can also occur when a person takes over from somebody who was on the lease but has moved out.
Boarder/lodger
A boarder or a lodger is a person who shares a property without having a lease and the owner, head-tenant or caretaker they live with keeps control of the premises. Boarders and lodgers are not covered by the Residential Tenancies Act 1987 and do not have the same rights and responsibilites as tenants.
© State of New South Wales through the Office of Fair Trading
AFTER YOU MOVE IN
When you are living in your rented home, there are day to day responsibilities that you and your landlord should be aware of.
Tenants responsibilities include keeping the premises reasonably clean, paying rent as per the lease agreement and telling the landlord or agent about any damage to the property as soon as possible.
Landlords responsibilities include ensuring that the required smoke alarm/s is installed and that the rented property is maintained in a reasonable condition, considering the age of the property, the amount of rent paid and the prospective life of the property.
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ACCESS, PRIVACY, LOCKS AND SECURITY
Keys
At the start of the tenancy, all tenants listed on the agreement must be given a set of keys and all other lock opening devices, swipe cards, remote controls, etc., so that they can enter and secure any part of the premises. This includes keys to any door, window, garage, or letterbox locks. Under no circumstances can any tenant be charged a separate fee, bond or deposit for keys.
Privacy
Tenants have a basic right to privacy and quiet enjoyment of the premises that must be respected by their landlord.
The landlord must make sure they, or anybody else on their behalf, do not interrupt the tenant's reasonable peace, comfort and quiet enjoyment of the premises.
Access and inspections
The landlord, agent or any person authorised by the landlord may enter the premises only in the following circumstances:
- to carry out a general inspection of the premises if the tenant is given at least seven days notice. There can be no more than four inspections in any twelve month period.
- to carry out necessary repairs if the tenant is given at least two days prior notice. The repairs must be necessary and must not simply be improvements or renovations. For urgent repairs no notice is necessary.
- to show the premises to prospective tenants on a reasonable number of occasions if the tenant gets reasonable notice on each occasion. This access is only permitted during the final 14 days of the tenancy.
- to show the premises to prospective buyers, on a reasonable number of occasions if the tenant gets reasonable notice on each occasion. What is 'reasonable' is for the parties to agree upon. The Tribunal can settle any disputes if one party believes the other is being unreasonable. Access to show buyers can occur at any stage during the tenancy.
- if there is good reason for the landlord to believe that the premises have been abandoned by the tenant.
- in an emergency
- if the Tribunal orders that access be allowed, or
- if the tenant agrees.
Unless the tenant agrees, access is not permitted on Sundays, public holidays or outside the hours of 8am to 8pm.
Reasonable security
The law states that a landlord must provide and maintain such locks or other security devices as are necessary to ensure that the premises are reasonably secure. What is 'reasonably secure' will vary in different situations.
The potential risk (ie. the likelihood the premises may be broken into) will have a bearing on the type and standard of locks needed to make a property reasonably secure. This will depend largely on the area in which the premises are located.
Even then, the same standard cannot be applied to all premises within an area. The ability of a thief to gain access to doors and windows can vary from one property to another. For instance, the level of security needed for a ground floor unit will usually be greater than for a unit on an upper level.
A landlord does not have to make the property so secure that the premises can never be broken into. The requirements of insurance companies are not the test of 'reasonable security'. Insurer's requirements are merely another factor to be taken into account.
What if the premises are not reasonably secure?
A tenant who believes at any time that the premises are not reasonably secure should immediately notify the landlord, preferably in writing, and request steps be taken to fix the problem.
Should the landlord fail, within a reasonable time, to carry out the work, the tenant may apply to the Tribunal. It is then up to the tenant to prove that the premises are not reasonably secure.
Added security
If a tenant wishes to add locks or other security devices to make the premises more than reasonably secure, the tenant must obtain the landlord's prior consent and pay all costs.
© State of New South Wales through the Office of Fair Trading
STORM DAMAGE
If a rented premises suffers damage in a storm it is in the best interest of landlords and tenants to communicate regularly and work together to make the best of an unusual and difficult situation. Knowing your rights and responsibilities as a landlord or tenant will assist this process and may help to avoid problems arising later on.
What happens with the tenancy
The first thing you will need to decide is whether the tenancy itself will continue. If the rented premises are uninhabitable, or even just partly uninhabitable, either one of you can give the other immediate written notice to end the tenancy permanently. Another option is for the tenant to move out temporarily, then return once repairs have been carried out. If the damage is minor, and there is no safety risk, a third option is for the tenant to remain in the premises and have the repairs carried out around them. A landlord has no obligation to help the tenant find or pay for other accommodation if they need to vacate.
What happens about the rent
If damage is so severe that the residence can no longer be lived in, or only partially lived in, provisions exist in the Residential Tenancies Act for terminating the lease early. If the tenancy is ended permanently the rent ceases to be payable from the day the tenant vacates. Any rent already paid in advance by the tenant must be fully refunded. If the tenant temporarily moves out or remains in the premises the tenancy agreement is not terminated. The rent, however, may be reduced or waived while the premises remain uninhabitable or partly uninhabitable. The level of rent reduction will depend on the extent of the damage and the amount of use the tenant has of the premises. Any agreement between the landlord and tenant about the level of rent reduction or its duration should be put in writing.
Repairs
Landlords have a responsibility at all times to maintain the rented premises in a reasonable state of repair. The first step, is for the landlord or agent, preferably with the tenant present, to inspect the premises and assess the extent of the damage. The premises may have suffered a range of damage including broken windows, broken roof tiles, collapsed ceilings or other damage. Serious storm damage, a serious roof leak, electrical faults or other damage which makes the premises unsafe or not secure must be dealt with on an urgent basis.
All parts of the premises which need repair should be fully itemised and documented. If the tenancy is to continue the landlord and tenant should discuss the timetable for repairs on a regular basis, recognising that there may be unavoidable delays because of the demand for insurance assessments and qualified tradepersons. A landlord is not obliged to compensate the tenant for any damage to their furniture or personal belongings arising from the storm.
Access
Usually, a tenant must be given at least 2 days notice on each occasion tradespeople will need to access the premises to carry out non-urgent repairs. If this is not practicable, landlords and tenants should discuss the problem and seek consent to a lesser period of notice.
© State of New South Wales through the Office of Fair Trading
TIPS FOR PROBLEM-FREE RENTING
Follow these helpful tips to avoid problems while you are renting:
- keep a copy of the lease agreement
- keep a copy of condition report:
- it will be needed at the end of the tenancy when a final inspection is done
- if the landlord/agent disputes the return of the bond at the end of the tenancy, a carefully completed condition report may help a tenant prove that the bond should be refunded to them
- take good care of your home and treat it as if you own it
- comply with all the requirements of your lease agreement
- notify your landlord/agent as soon as you become aware of a problem:
- let them know in person (you could take someone with you to act as a witness) or by phone and then follow up with a letter confirming what was said
- any follow up letter should clearly outline the problem, what you want done and the history of your complaint ie. when you first made contact etc
- keep a diary of your conversations with the landlord/agent - record all the times and dates of conversations, who you spoke to and what they agreed to do
- keep copies of all your letters to the landlord/agent
- respect the peace, comfort and privacy of your neighbours
- do NOT stop paying rent regardless of what the landlord/agent does or doesn't do:
- fourteen days rent arrears is sufficient grounds for your landlord to give you 14 days notice to leave - it's much safer and much more effective to apply to the Consumer, Trader and Tenancy Tribunal for a solution
- contact your landlord immediately if you need an urgent repair
- if you are having difficulty in paying the rent, you should notify your landlord immediately
- don't move out without giving the required notice as you may end up losing your bond or having to pay compensation to the landlord
- leave the premises in the condition in which you found them, fair wear and tear excepted
- take all your belongings with you when you leave.
© State of New South Wales through the Office of Fair Trading
WHEN YOU MOVE OUT
Notice of termination
A tenancy will usually be terminated by either the landlord or the tenant giving notice to the other party. However, in certain circumstances the Tribunal may be required to make orders to terminate a tenancy.
A notice of termination must:
- be in writing
- state the address of the premises
- be signed and dated
- allow the required period of time
- give the date on which the tenant intends to, or is requested to, move out (Note: do not use words such as 'by' or 'on or before' in the notice)
- give full details of all breaches (if any) or reasons for ending the agreement
- and, if given to a tenant, include a statement that information about their rights and obligations can be found in the tenancy agreement.
The notice can be posted or given personally. A notice cannot be stuck to or put under a door by the person sending the notice.
If the notice is sent by post at least 4 working days (not including the day the notice was sent) should be added to the amount of notice, to allow time for the notice to be delivered.
The notice period is counted from the day after the notice is served.
Notice periods
When the fixed term period of the agreement is due to run out, either party can give 14 days notice to end the tenancy. This notice can be served up to and including the last day of the fixed term.
Once the fixed term period has ended, a tenant is required to give at least 21 days notice, and the landlord must give at least 60 days notice.
Notice on sale of premises
If the premises are sold and vacant possession is required in the contract of sale, the landlord must give the tenant at least 30 days written notice (after the contracts of sale have been exchanged). This only applies once the fixed term period of the lease has expired. However, such a notice cannot be given during the fixed term period of a lease.
Notice on breach
A notice of termination may be given at any time if either party seriously or persistently breaches a term of the agreement, or if the tenant is more than 14 days in arrears of rent. At least 14 days notice must be given in writing.
Breaking an agreement early
If a tenant wants to end their agreement early they should give as much notice as possible, preferably in writing (keep a copy of the letter). It is a good idea to state the exact date you intend to leave and that you want the landlord (or agent) to find a new tenant. Any assistance in finding a replacement tenant (such as making the property readily available for inspection) may help to reduce the costs involved.
Having said this, breaking an agreement can be costly. A landlord can claim compensation for any loss they suffer as a result of a tenant ending the agreement early. The costs a tenant could be liable for include:
- rent until new tenants move in or the existing agreement runs out (whichever happens first)
- a reletting fee (usually one weeks rent) when the property is let by an agent who charges the landlord a fee for finding new tenants
- advertising costs.
For a landlord to successfully claim, they must be able to show that their loss was caused by the tenant breaking the agreement early, not by other factors. For example, if a tenant breaks the agreement just prior to the expiry date, the full amount of reletting and advertising charges may not be able to be passed on since the landlord would have incurred these expenses shortly anyway. The landlord also has a duty to keep their loss to a minimum. This means that the landlord must make a reasonable effort to find a new tenant, otherwise any claim they later make may be reduced by the Consumer, Trader and Tenancy Tribunal.
Undue hardship
A tenant or landlord can at any stage of the tenancy apply to the Consumer, Trader and Tenancy Tribunal to end the agreement on hardship grounds. No prior notice is required.
It is up to the party claiming hardship to satisfy the Tribunal that there are grounds for ending the agreement. If the Tribunal makes an order to end the tenancy, the party suffering hardship may be ordered to pay compensation to the other party.
Fair wear and tear
At the end of a tenancy the tenant is responsible for leaving the premises as nearly as possible in the same condition, fair wear and tear excepted, as set out in the original condition report.
Fair wear and tear means the deterioration that occurs over time with the reasonable use of the premises by the tenant and the ordinary operation of natural elements, even though the premises receive reasonable care and maintenance.
Final inspection and returning keys
At, or as soon as possible after, the end of the tenancy both the tenant and the landlord/agent must carry out a final inspection of the premises. The original condition reports should then be completed by both parties. However, if a reasonable opportunity is given to the other party to be there and they do not show up, the report may be filled out in their absence.
A tenant is responsible for returning all copies of keys given to them by the landlord or agent at the start of the tenancy.
Bond refunds
During the tenancy, the rental bond is held by the Office of Fair Trading. At the end of the tenancy, after the final inspection, a claim for Refund of Bond Money form should be filled out by the landlord or agent and given to the tenant to sign. Claim forms can be obtained from the Office of Fair Trading, any Fair Trading Centre, or this website.
Any disagreement over how the bond is to be paid out should first be discussed between the parties.
If agreement cannot be reached, either party may send a claim form to the Office of Fair Trading, without the signature of the other party. The bond will not be paid out straight away. A letter will be sent to the other party advising them of the claim and giving them 14 days to apply to the Tribunal to dispute the claim. If no reply is received within 14 days the bond will then be paid out.
No matter who applies to the Tribunal it is always up to the landlord to prove any claim on the bond.
© State of New South Wales through the Office of Fair Trading
ABANDONED PREMISES AND UNCOLLECTED GOODS
Abandoned premises
If the residential premises appear to have been abandoned by the tenant, a landlord may apply to the Consumer, Trader and Tenancy Tribunal for an order to have the premises declared abandoned. Once such an order is given, the premises are considered abandoned from the date specified on the order.
The landlord or agent must present evidence to the Tribunal to support their claim that the premises have been abandoned. This may include statements from witnesses, notices of disconnection of electricity, telephone or gas, empty premises etc.
An application to the Tribunal is not necessary if there is sufficient information to be certain that the premises have been abandoned. In this situation, the premises can be secured immediately, though it may be advisable to obtain an order or seek further advice.
Compensation
The tenant who abandons the residential premises is liable to pay compensation to the landlord for any loss (eg. loss of rent) caused by the abandonment. The landlord should take all reasonable steps to minimise any loss. If steps are not taken by the landlord to avoid the loss, compensation for that loss may not be recoverable.
Some of the costs the landlord may recover are the agent's reletting fee and reasonable advertising costs, if the abandonment occurs during the fixed term.
Abandoned or uncollected goods
Items that have been left in the residential premises by the tenant after vacating become 'uncollected goods'. If these goods remain in the premises for 2 working days after the tenant has vacated, they may be disposed of if their value is estimated not to be higher than the cost of removal and storage. Otherwise they must be stored in a safe place. If the goods are perishable foodstuffs, they may be disposed of immediately.
Tenants may apply to the Tribunal for orders that the landlord deliver to them the goods left behind. Persons other than tenants and landlords who may have an interest in the goods also have the right to apply to the Tribunal (eg. an appliance hire company).
Auctioning of goods
Once the uncollected goods have been stored for 30 days, they may be sold by public auction.
The landlord is required to account to the tenant for the balance of the proceeds of the sale after the deduction of the reasonable costs of removal, storage and sale of the goods.
Notice to tenant required
If the uncollected goods are stored, a landlord or their agent must take the following steps within seven days of placing the goods into storage:-
- provide the tenant with a written notice that the goods are in storage, and
- publish the notice in a Statewide newspaper.
The notice may be given to the tenant by posting it to the last forwarding address known to the landlord. It may also be given to a person who was nominated by the tenant before the tenant vacated the premises.
The notice must contain the following:-
- the landlord's name and address, or an address where the goods can be claimed
- the tenant's name
- the address of the rented premises
- a description of the goods
- a statement that, on or after a specified date, the goods will be sold by public auction unless they are first claimed, and the reasonable costs of removal and storage, but not other costs (e.g. outstanding rent), are paid, and
- a statement that the landlord will retain the reasonable costs of removal, storage and sale from the proceeds of the auction.
© State of New South Wales through the Office of Fair Trading
RESOLVING RENTING PROBLEMS
First step
The first step in resolving any problem or dispute is to carefully read the term/s of your agreement.
It is always best for a tenant and a landlord/agent to try and solve any problems between themselves. To avoid possible problems later, any agreement reached should be put in writing.
Obtaining information and advice
The Office of Fair Trading has specialist Customer Service Officers from whom tenants, landlords, agents and other interested persons are able to obtain further information on tenancy laws, free of charge. Should you wish to clarify any tenancy matter you may contact Fair Trading on 13 32 20 or visit your nearest Fair Trading Centre. Tenants also have the option of contacting their local Tenants’ Advice and Advocacy Service for more information about their rights and obligations.
It is recognised that information will not resolve every problem or dispute. Some matters may need to be taken to the Consumer, Trader and Tenancy Tribunal. Fair Trading staff can answer any questions you may have on the process involved. The relevant application forms can be downloaded from the CTTT website.
The Consumer, Trader and Tenancy Tribunal
The Consumer, Trader and Tenancy Tribunal is an independent decision making body which hears and decides applications for orders from tenants and landlords. The Tribunal is a quick, inexpensive, and relatively informal way of resolving disputes.
Applications may be obtained from any Consumer, Trader and Tenancy Tribunal Registry, the CTT website, or Fair Trading Centre. These applications may be lodged by post or at any CTTT Registry, Fair Trading Centre or Local Court.
Costs
The current fee for applying to the Tenancy Division of the Consumer, Trader and Tenancy Tribunal (CTTT) can be found on the Consumer, Trader and Tenancy Tribunal (CTTT) fees page. A reduced fee is also available for eligible pensioners and full time students. Hearings are usually held within one month and are conducted at a venue as close as possible to the premises.
Time limits
There are prescribed time limits for making applications to the Tribunal for certain orders. For example, in cases where an order is requested regarding broken terms of the tenancy agreement, this order should normally be sought within 30 days of becoming aware of the event. The application time limits are included in the Tribunal's Tenancy Division application form.
Orders
The Tribunal can make orders, among others that:
- a term of the agreement be complied with
- compensation be paid to a tenant or landlord
- a rent increase is excessive
- the agreement be ended
- a rental bond be paid
The Application for an order – Tenancy Division contains a comprehensive list of what orders the Tribunal can make.
Hearings
The Member will first ask the parties to try to reach a settlement. If this cannot be achieved the case will then be heard in the Tribunal hearing room. The Member will allow both parties, in turn, to tell their side of the events and present any evidence.
Hearings are usually informal, but formal hearings can be held on request, where witnesses can be called and evidence is given under oath.
It is up to the person who made the application to provide enough evidence to convince the Tribunal Member, on the balance of probabilities, that the orders they are seeking should be given. Any orders made are binding.
© State of New South Wales through the Office of Fair Trading
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